OCR enforces Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d, as implemented by regulations at 34 C.F.R. Part 100, which bars public schools, as well as private institutions that receive federal financial assistance, from discriminating on the basis of race, color, or national origin. Racial discrimination by school districts that violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution also violates Title VI.

However:

We note here, at the outset, that Title VI does not require a school district to rely solely on objective measures, such as grades and test scores, to admit applicants. A school may, consistent with Title VI, elect to consider a range of other, difficult to quantify factors, such as motivation, leadership, personal achievements and teacher recommendations, in admitting students to a school.

Further, the use of race as a factor in admissions, in and of itself, is not a violation of federal law. The U.S. Department of Education and the U.S. Department of Justice have recognized, as has a majority of Justices on the U.S. Supreme Court, the compelling interests that K-12 schools have in obtaining the benefits that flow from achieving a diverse student body and avoiding racial isolation. [emphasis mine]

I'm no lawyer. But given this utterly elastic standard (you can't "discriminate on the basis of race" but you can "use race as a factor in admissions"), I don't see how Cohen could possibly win. Still, he's is already appealing. Highlights from his full appeal:

You state
that "the Division has maintained that it was not considering the race of the applicants in the admissions decisions to the School during 2002." Let me list some of the facts in
this matter that make this assertion completely non-credible.

First, there is
the quote from the Guidelines that you copy in your letter to me. It clearly
instructs the selection committees to take race into consideration in their
determinations.

Second, we have the assignment of members to the various
selection committees. As I document in my article... the
makeup of these committees is carefully structured to represent a particular
ethnic distribution--one by the way that does not remotely match the distribution of the student body of the school.

Third, we have an article
written by the then Superintendant of the Fairfax County Schools. In 2003
Superintendant Daniel A. Domenech published: Metamorphosis: From Statistics into Cockroaches, A Response to Professor Cohen's 'A Study of Invidious Racial Discrimination in Admissions at
Thomas Jefferson High School for Science and Technology: Monty Python and Franz
Kafka Meet a Probit Regression' in volume 67 of the Albany Law Review. In
that article Superintendant Domenech never disputes my claim that race was used
in the admissions process but instead justifies such use of race as
contributing "to sustaining a well rounded and diverse community of learners at
TJ."

Fourth, and of over-riding importance, is the unnecessary inclusion of
information on race in each applicant's file. While (as I document) much of the core information on performance is either expurgated or dumbed down in the
files presented to the selection committees, one piece of information that the
Division claims is not counted at all is prominently displayed--the race of the
applicant. When, for the entire history of our nation, race has been a
prominent basis of discrimination, when the issue of the racial distribution of
the student body of TJ has been heatedly discussed for a decade, it is simply
incredible that this information is simply gratuitously and unnecessary
prominently displayed in each file if it is not intended that it be employed in
the decision making process.

The DOE's reply and Cohen's appeal delve into the statistics in great detail. Personally, I'd like to see all this data publicly released and used in econometrics classes. Indeed, adjudicating between the DOE and Cohen would be a fantastic senior project for TJ students, though I wouldn't envy the teacher who gave such an assignment...

P.S. Both the DOE's letter and Lloyd Cohen's appeal are used with Cohen's permission.

The laws are written dishonestly and that is a cause of many problems. We all know what the laws should have said. They should have been limited to address discrimination against black Americans who descended from American slaves. They also should have set some concrete goals. So mostly what the laws actually say is ignored. When what the laws actually say are not ignored you get the absurdity of descendents of Mexican who came to the USA voluntarily and never endured Jim Crow laws getting AA. If you go by what the laws actually say you also end up with more discrimination against Asians and Jews than is need to address the historic discrimination against blacks.
Like SS it is a case of the designers of the laws creating fraudulent laws so that they can do things that that voters would not support.

BTW My wife is Hispanic and I have other Hispanic friends and they seem to overwhelmingly agree with me that Hispanics should not get AA.

Bryan, You don't have to be a lawyer to see the sophistry of the OCR's position. It really is just untenable.

Floccina,
I think you're giving ground where none needs to be given. It was my understanding that at the time AA was passed everyone understood it to be temporary. Almost 50 years later and ha-ha on us. I find it no more absurd for descendents of Mexicans, Asians or Jews to face discrimination under the law purported to allay discrimination than it is for present day descendents of whites. What possible culpability could the son or daughter of a white truck driver and Walmart checkout clerk have in things that happened 50 or, in the case of slavery, 150+ years ago. Where is the justice in this line of thinking?

Look, the political reality is that any elite public institution representing students that does not have at least a fair amount of representation from all major racial groups will not exist for long.

I'm not surprised that those who have a stake in the existence of the school are fighting this tooth and nail. Elite public institutions of any sort are problematic - being seen as disproportionately benefiting already successful racial groups could be the kiss of death.

Secondly, is there anyone who actually believes that AA has much to do with slavery? Almost all the support for AA that I am aware of is based on the deleterious social effects of having major ethnic groups lack significant representation in the middle class along with "making up" for fairly significant and well documented racial discrimination (for example: highly varying callback rates for resumes varying depending on how "black" the name is).

I've always considered criticism of AA for not being about slavery to be rather beside the point for the last 20-30 years.

It seems to me that one thing missing from this discussion is the difference between discrimination against a given race and choice of applicants of different backgrounds in order to achieve a group-level outcome of diversity of races.

In other words, if applicants are turned down because of their race because a school wants a whites-only (or blacks-only etc) student body and so they turn down any and all people who don't fit the description, this is discrimination. If on the other hand the school wants a diverse student body, they may consider the race of the applicants in order to achieve diversity - and so turning away certain students of a given race in order to reach this balance is not discrimination against the race, as the race will still be represented, just by other students.

This is not to say that the latter is good, or bad. It does seem different though.

Although AA beats TJ 78.84% of the time in an all-in confrontation, I'd almost rather have TJ. Then, on the flop, you know for sure whether you're ahead or behind, whereas with AA you're just guessing.

I would guess that no one will argue that there was a time when certain groups were deliberately prevented from attending certain schools and that the justice system played favorites and that they were indeed persecuted. What I find very depressing is that there is almost NO acknowledgement that the environment has changed. If you go looking for that one racist or bigot or government or education official who will refuse to help/admit someone because of the color of their skin, you will find him/her - but there is simply no empirical or philosophical support for the argument that there is widespread racist attitudes or that those with ability and the merit are being denied admission anywhere.

TJ High School was designed (from what I know) to be a place for the very high achievers - a place where students are trained in the advanced sciences/mathematics - so they are challenged - and the can pursue what interests them - and go on to challenging programs anywhere. To dilute the mission of TJ (and such schools) by using "race" and not "merit" is doing a disservice to both "race" and "merit". I am guessing that soon, unless something is done, TJ will go back to being "like other schools" - because the public will refuse to support an "elite" public instituton that does not practice "diversity".

The dumbing down will hurt everyone - most of all those that are seeking to get better in what they do. TJ may never be able to go back to admitting students strictly on merit - on what they can do on some tests, exams - objective tests and exams - IRRESPECTIVE of how they look and what their skin color may be.

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